Can private property be expropriated?
Forced expropriation law. The answer is yes, although throughout this post what we are going to try to do is explain all the procedural irregularities that the Administrations incur and that can prevent them from appropriating our assets in an irregular and sometimes illegal manner. Therefore, through the analysis of the expropriation procedure I am going to highlight the different irregularities that Administrations frequently incur and that as citizens we can fight before the Courts, with quite positive results.
Traditionally, the exercise of expropriation power is conditioned by its submission to a formal and rigorous procedure, the main moments of which go beyond the simple nature of procedures established in guarantees of the public interest.
The Forced Expropriation Law of 1954 structures this procedure in:
- A prerequisite.
- The declaration of public utility or social interest.
And three phases or periods, which are:
- The need for occupation or acquisition of rights.
- Determination of fair price.
- Payment and taking possession.
We will refer to each of these points below, but not before mentioning that the omission of any of the procedural requirements will legitimize the expropriated party to use the existing legal means aimed at the restitution of the lost property.
Consequently, one of the first steps to be taken would be to observe whether the Administration has justified and motivated said assets for the purpose of expropriation.
1.- The declaration of public utility or social interest.
As provided in article 9 LEF, to proceed with the law of forced expropriation, the prior declaration of public utility or social interest of the purpose to which the expropriated object is to be affected will be essential. Or in other words, the justification of the express cause by which the Administration is legitimized to exercise powers aimed at depriving a citizen of his property.
Consequently, this prerequisite becomes a basic and indispensable presupposition for the exercise of the expropriation power, whose omission or indeterminacy will determine the nullity of the entire expropriation file.
In this sense, the Supreme Court's ruling dated February 4, 2011, in relation to the City of Light, is clear and forceful, where our High Court declared that "Let us remember that it is the jurisprudence of this Chamber that the nullity of the declaration of public utility carries with it everything that was subsequently done in the expropriation procedure. See, among many others, the Judgments of this Chamber of July 24, 2001, October 29, 2002 or January 16, 2003, cited in that of November 10, 2010 (cassation appeal 2139/2007)”
2.- The declaration of the need to occupy the property or objective right of the law of forced expropriation.
This phase begins with a prior procedure which is essential for the viability of the entire procedure of the forced expropriation law and which the Administration often does not comply with, intentionally omitting it to expedite the expropriation procedure.
This prior procedure consists of the opening of a public information period, which is prior and perceptive to the beginning of the expropriation file itself, and where the Administration must proceed to publish the so-called individualized list of the assets and rights to be expropriated, containing the material and legal status of each one and the identification of the owners and holders of rights or interests.
This individualized relationship gives rise to a period of public information for a period of 15 days, in which any person may provide the appropriate data to rectify possible errors in the published relationship and object, for reasons of substance or form, to the need for occupation. . This list will be published in the BOE, in one of the newspapers with the greatest circulation and on the notice boards of the City Councils.
The omission of this prior procedure is fundamental, and has caused hundreds of lawsuits with positive results for the interested parties, and the majority of lawyers either do not allege it or simply do not observe this very important omission.
Thus we have in our office, a multitude of Sentences from both the Superior Courts of Justice of different Autonomous Communities and the Supreme Court itself that have declared the nullity of the expropriation file based on the omission of this essential procedure, among which we highlight
Supreme Court-Third Chamber-Section 1ª 4148/2014
Supreme Court-Third Chamber-Section 6 503/2013
Supreme Court-Third Chamber-Section 6ª 4691/2010
Supreme Court-Third Chamber-Section 6ª 1549/2010
Supreme Court-Third Chamber-Section 6 2110/2009
Supreme Court-Third Chamber-Section 6 6096/2007
Supreme Court-Third Chamber-Section 6 6160/2006
Supreme Court-Third Chamber-Section 6 4238/2006
Supreme Court-Third Chamber-Section 6ª 1754/2006
Supreme Court-Third Chamber-Section 6ª 2671/2007
Supreme Court-Third Chamber-Section 6 184/2007
All of them declared the nullity of the Administrative file, based on the omission of the essential public information procedure.
forced expropriation law
Once the period of 15 days of public information has ended, another period of 20 days is opened during which the Administration must proceed to the examination and qualification of the opposition documents, the fruit of such qualification being the administrative act that properly initiates the expropriation file, which It is the agreement of need for occupation.
It is necessary to emphasize this point, that it is this administrative act, that is, the Resolution that incorporates the rectifications or complements the data, which will begin the administrative file. This is important to highlight, because a large part of the jurists are not aware that the beginning of the file necessarily needs to incorporate the results of the public information period, and this result will give rise to the agreement of need for occupation, the omission of which would determine that the procedure would accrue null and void by omitting an essential procedure within the procedure itself.
Once the agreement on the need for occupancy has been issued, it will be published and individually notified to all interested parties, whose omission or error would once again determine the nullity of the procedure.
At this procedural point and not at another, and depending on the type of expropriandi cause, the procedures of the ordinary procedure or the emergency procedure will continue, another of the errors that are frequently incurred given that even though the file is articulate for the urgent procedures, this does not mean that the procedures described so far should not be carried out compulsorily by the Administration.
As a brief aside, the big differences between both procedures focus on the order of the subsequent phases.
While the ordinary procedure, the phases that would continue would be.
- 1. Determination of fair price.
- 2. Payment and possession.
In an emergency procedure the phases would be the following:
- 3. Notification to interested parties of the day and time on which the prior occupancy record is to be drawn up.
- 4. Preparation on the land of the pre-occupation record in which the expropriable property or right will be described.
- 5. Formulation by the Administration of the deposit form prior to occupation, taking the tax value of the property as a basis for setting the amount.
- 6. Establishment by the Administration, in the prior deposit sheets, of the amount of damages arising from the urgency, which will be paid as compensation to the interested party.
- 7. Occupation by the Administration of the property within a maximum period of 15 days.
- 8. Fair price and payment determination phase, which will be carried out in accordance with the general procedure.
As can be seen, in the emergency procedure, after the prior processing of the file described above, the Administration occupies and then pays, which has caused that in each and every one of the forced expropriation laws carried out by the Ministry of Promotion in recent decades, corresponding to High Speed Lines or land infrastructure, has been articulated through the urgency procedure, in which after depriving the owners of their assets, the payment of fair prices has been delayed to current dates, and where the interested parties, after being stripped of their properties, have had no choice but to accept the very low fair prices that the Administration has offered them, an issue that this office has also denounced, not only before the Spanish Courts, but before the European Parliament, whose decision we're waiting.
After this brief section, the next phase of the procedure would normally be the determination of the fair price, which can be carried out by mutual agreement, by the Provincial Expropriation Jury or by the Contentious Administrative Courts.
3.- Determination of fair price.
– In the case of mutual agreement, a proposal will be made that, if accepted by the owner, will be signed and occupation will proceed. Although in the event that 15 days have passed without a resolution by mutual agreement, the ordinary processing will proceed, and may be transformed again into mutual agreement until the moment where the Provincial Jury makes the decision.
– Determination by the Provincial Expropriation Jury. The fixing of the fair price is processed as a separate piece, with each of the owners opening a file containing the actions carried out for the mutual agreement and its result.
The Administration will require the owners to prepare an appraisal sheet in which the value of the property is specified, for a period of 20 days. The expropriating Administration may accept, proceeding to payment and occupation, or reject it, in which case a founded appraisal sheet will be issued, which will be notified to the interested party, who may accept or reject it, in the latter case presenting allegations or valuation methods, elevating the actions to the Provincial Expropriation Jury, forced expropriation law, which will decide enforceably on the fair price.
Before the last phase of the procedure, that is, payment and occupation, those administered have a series of jurisdictional guarantees, such as:
– The request for late payment interest, in the event that more than 6 months had passed since the initiation without a fair price having been established or set, would not have been made effective. Its accrual is automatic and its amount will be set in accordance with the General State Budget Law.
– The reassessment, which is configured as the right of the expropriated to request a new valuation if after two years from the fixing of the fair price it has not been paid or recorded.
– The de facto route, which will occur when the Administration, without following the legally established procedure, occupies or attempts to occupy the assets of those administered.
Despite being an action that is little carried out, in most cases, important results are obtained, given, as we have previously expressed, the Administration, in its desire to obtain land quickly, omits essential procedures that determine the illegal occupation of the large part of the land. expropriated property, with the consequent repercussions that this entails.
4.- Payment and occupation.
This is the final phase that can only be carried out after payment or consignment (except in the emergency procedure).
Occupation causes the extinction of any type of rights over said properties, so notification to the occupants of the day and time of the eviction will be necessary.
The ultimate purpose of the law of forced expropriation and what serves as its justification (causa expropriandi) has not yet been fulfilled in this phase, so it may happen that it will never be fulfilled, thus causing the expropriation operation to lose its justification. This is the reason why the law articulates the so-called reversion of assets.
5.- The reversal.
The assumptions where it can be executed are assessed and are:
- When the work is not executed or the service that caused it is not established.
- When the work is carried out or the service is established, any surplus part of the goods
- When the condition of the assets to the work or service that motivated the expropriation disappears (forced expropriation law).
- The period for its exercise will be 3 months from the date of notification of the excess, disaffection or intention not to execute the work. In the absence of such notification, the terms will vary depending on the case from 20, 5, 2 years.
In this case, and according to the professional experience that supports us, the exercise of this right must be assessed individually, given that the compensation will consist of the restitution of the compensation obtained updated with the CPI in the period between the initiation date of the fair price file and that of the reversion exercise plus the assessment of the possible improvements that can be taken advantage of by the owner of the property. Therefore, sometimes the economic disruption that can be caused to the owners is greater than their current situation.
If you need a lawyer specializing in forced expropriation law, do not hesitate to contact us through different means, by e-mail, by telephone or by appointment at our office, located at Avenida Doctor Waksman 33-7 in Valencia. Don't hesitate and come find out, you will appreciate it.